Case: Occupy Delaware v. City of Wilmington

7027-VCG | Delaware state trial court

Filed Date: Nov. 9, 2011

Closed Date: 2012

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Case Summary

On November 9, 2011, Occupy Delaware filed a lawsuit in the Court of Chancery of the State of Delaware under the First and Fourteenth Amendments of the United States Constitution, as well as under Article I, § 5 of the Delaware Constitution, against the City of Wilmington. The plaintiff, represented by public interest counsel, sought injunctive and declaratory relief. The complaint alleges that the City of Wilmington violated the constitutional rights of Occupy Delaware and its members by: (1) denying it and its members the right to use Peter Spencer Plaza in Wilmington as a location for conducting protests unless they pay the City a $200 fee; (2) preventing it and its members from using the plaza at night; and, (3) preventing it and its members from placing tents and other temporary shelter on the plaza. Verified Compl. 1-2. Specifically, Occupy Delaware claimed that the Wilmington City Code provisions that the City relied on in imposing these requirements were by their terms not applicable to Peter Spencer. Occupy Delaware further claimed the provisions were unconstitutionally overbroad and vague in such a manner that they could not be applied to limit rights guaranteed by the First and Fourteenth Amendments of the United States Constitution as well as by Article I, § 5 of the Delaware Constitution.

On November 9, 2011--the same day this suit was filed--Occupy Delaware filed a motion for a temporary restraining order asking the court to prevent the City from depriving Occupy Delaware members from using the plaza. Occupy Delaware argued that if the City were to be allowed to remove Occupy Delaware members from the plaza, or allowed to otherwise prevent them from using the plaza, this would constitute immediate irreparable harm, as it would deprive Occupy members from fundamental constitutional rights--namely the right to assembly and freedom of speech. In contrast, Occupy Delaware argued that there was no alleged harm that would arise from the granting of the temporary injunctive relief.

On November 10, 2011, the Court of Chancery (Judge Sam Glasscock, III) granted the temporary restraining order for 24 hours and scheduled a hearing on the motion for the next day. Order Granting TRO. Later that day, however, the parties reached a settlement. Settlement Agreement. The terms of the agreement provided that Occupy Delaware and its members were allowed to: (1) use Peter Spencer Plaza without paying a fee for as long as they wished, (2) remain on the plaza seven days a week and around the clock, and (3) place tables, tents, signs and other items on the plaza. However, Occupy Delaware agreed to limit the location of where its members were allowed to place their tents, and not to block pedestrian traffic. Occupy Delaware further agreed that it would not establish another encampment in downtown Wilmington unless the plaza became insufficient to host its numbers. The City also reserved the right to "ask the Court to excuse it from complying with [the] agreement if, due to a physical change in the plaza that is in no way attributable to actions by the city or its agents, it becomes unreasonable for the occupation to continue at Peter Spencer Plaza." Id.

Occupy Delaware filed a supplemental complaint on May 7, 2012, alleging that the City was in violation of the settlement agreement. Verified Supplemental Compl. 1. Occupy Delaware alleged that that on April 23, 2012, the City issued a news release in which the mayor directed Occupy Delaware to discontinue its occupation of the plaza. Occupy Delaware argued that in the absence of a finding by the court that it was unreasonable for the occupation to continue "because of a physical change in the plaza that is in no way attributable to actions by the city or its agents," as provided by the settlement agreement, this was an anticipatory breach of the settlement agreement by the City. Occupy Delaware further argued that the November 2011 settlement agreement provided it with a contractual right to occupy the Plaza, in addition to its prior constitutional claims. See id. 4.

On July 16, 2012, the parties requested the court to approve a joint stipulation effectively dismissing the suit without prejudice. Stipulated Order. The stipulation provides that, given that the Plaza was to be renovated beginning September 17, 2012: (1) Occupy Delaware would remove its tents, signs, and other structures and items its members had placed by September 10, 2012, (2) Occupy Delaware would not add any tents, signs or items to the Plaza after July 16, 2012, and the City would not seek to have any removed prior to the termination of the encampment, (3) the November 10, 2011, settlement agreement would be terminated, and (4) each party would bear its own attorney's fees and costs. The court approved the stipulation the same day. Id.

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Summary Authors

Greg in den Berken (6/23/2014)

People

Judge(s)

Glasscock, Sam (Delaware)

Attorney for Plaintiff

Morse, Richard H. (Delaware)

Attorney for Defendant

Cochran, Malcolm IV (Delaware)

Levy, Jaclyn C. (Delaware)

Tassone-DiNardo, Rosamaria (Delaware)

Judge(s)

Glasscock, Sam (Delaware)

Attorney for Plaintiff

Morse, Richard H. (Delaware)

Attorney for Defendant

Cochran, Malcolm IV (Delaware)

Levy, Jaclyn C. (Delaware)

Tassone-DiNardo, Rosamaria (Delaware)

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Documents in the Clearinghouse

	Document
7027-VCG	Verified Complaint	Nov. 9, 2011	Nov. 9, 2011 Complaint
7027-VCG	Agreement Between Occupy Delaware and City of Wilmington	Nov. 10, 2011	Nov. 10, 2011 Settlement Agreement
7027-VCG	Order Granting Temporary Restraining Order [For 24 Hours until TRO Hearing]	Nov. 10, 2011	Nov. 10, 2011 Order/Opinion
7027-VCG	Verified Supplemental Complaint [With Exhibits Attached]	May 7, 2012	May 7, 2012 Complaint
7027-VCG	Stipulated Order [Overturning November Settlement]	July 16, 2012	July 16, 2012 Order/Opinion

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Docket

Last updated Sept. 28, 2024, 1:01 p.m.

ECF Number	Description	Date	Link Date / Link
52479333	Verified Complaint	Nov. 9, 2011	Nov. 9, 2011
52479333	Complaint	Nov. 9, 2011	Nov. 9, 2011
52479334	Verification to Complaint	Nov. 9, 2011	Nov. 9, 2011
52479334	Verification Of Brian Collins To Verified Complaint	Nov. 9, 2011	Nov. 9, 2011
52479335	Supplemental Information Pursuant To Rule 3(A) Of The Rules Of The Court Of Chancery	Nov. 9, 2011	Nov. 9, 2011
52479335	Supplemental Information Sheet	Nov. 9, 2011	Nov. 9, 2011
52479336	Motion for Temporary Restraining Order	Nov. 9, 2011	Nov. 9, 2011
52479336	Plaintiff's Motion For A Temporary Restraining Order	Nov. 9, 2011	Nov. 9, 2011
52479337	Proposed Order	Nov. 9, 2011	Nov. 9, 2011
52479337	(Proposed) Order To Plaintiff's Motion For A Temporary Restraining Order	Nov. 9, 2011	Nov. 9, 2011
52479339	Request for Judicial Action	Nov. 9, 2011	Nov. 9, 2011
52479339	Plaintiff's Request For Judicial Action	Nov. 9, 2011	Nov. 9, 2011
52479340	Letter	Nov. 9, 2011	Nov. 9, 2011
52479340	Letter To The Honorable Leo E. Strine, Jr. Dated November 9, 2011 From Richard H. Morse, Esquire Transmitting Complaint and TRO Papers	Nov. 9, 2011	Nov. 9, 2011
52495500	Memorandum	Nov. 10, 2011	Nov. 10, 2011
52495500	Memorandum Of Law In Support Of Plaintiff's Motion For A Temporary Restraining Order 1 Exhibits A-C To Memorandum Of Law In Support Of Plaintiff's Motion For A Temporary Restraining Order View on PACER	Nov. 10, 2011	Nov. 10, 2011
52503851	Judicial Action Form	Nov. 10, 2011	Nov. 10, 2011
52503851	Judicial Action Form approved by VC Glasscock. Telephonic TRO held. Granted TRO for 24 hours until a final TRO hearing is held; scheduled for 11 11 11 at 2:00 p.m. in Wilmington. An independent decision will be made at that time. Brief Memorandum due from defendant's counsel by noon tomorrow. Bond without surety set for $200.00.	Nov. 10, 2011	Nov. 10, 2011
52505390	Other	Nov. 10, 2011	Nov. 10, 2011
52505390	Blank bond without surety sent to Richard Morse via email	Nov. 10, 2011	Nov. 10, 2011
52561687	Notice of Lodging	Nov. 14, 2011	Nov. 14, 2011
52561687	Plaintiff's Notice Of Lodging 1 Exhibit To Plaintiff's Notice Of Lodging View on PACER 2 Certificate Of Service To Plaintiff's Notice Of Lodging View on PACER	Nov. 14, 2011	Nov. 14, 2011
56776384	Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint 1 Exhibit A To Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint View on PACER 2 Exhibits A-E To Exhibit A To Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint View on PACER 3 Exhibits B, C, D To Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint View on PACER 4 (Proposed) Order To Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint View on PACER 5 Plaintiff's Request For Judicial Action View on PACER 6 Certificate Of Service To Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint, And Plaintiff's Request For Judicial Action View on PACER	May 1, 2012	May 1, 2012
56776384	Motion	May 1, 2012	May 1, 2012
56782288	May 1, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV requesting a status conference with the Court to discuss the manner in which to proceed 1 Exhibit A to May 1, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV requesting a status conference with the Court to discuss the manner in which to proceed View on PACER	May 1, 2012	May 1, 2012
56782288	Letter	May 1, 2012	May 1, 2012
56853229	Letter	May 3, 2012	May 3, 2012
56853229	May 3, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV to alert the court of issues that the City wishes to raise during the status conference scheduled for May 4, 2012 1 Exhibit A to May 3, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV to alert the court of issues that the City wishes to raise during the status conference scheduled for May 4, 2012 View on PACER 2 Exhibit B, Part 1 to May 3, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV to alert the court of issues that the City wishes to raise during the status conference scheduled for May 4, 2012 View on PACER 3 Exhibit B, Part 2 to May 3, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV to alert the court of issues that the City wishes to raise during the status conference scheduled for May 4, 2012 View on PACER 4 Exhibit C to May 3, 2012 letter to The Honorable Sam Glasscock, III from C. Malcolm Cochran, IV to alert the court of issues that the City wishes to raise during the status conference scheduled for May 4, 2012 View on PACER	May 3, 2012	May 3, 2012
56883640	Judicial Action Form completed by Christine Quinn, Court Reporter. Teleconference Status held before VC Glasscock on 5-4-12.	May 4, 2012	May 4, 2012
56883640	Judicial Action Form	May 4, 2012	May 4, 2012
56886417	Order	May 4, 2012	May 4, 2012
56886417	Granted ((Proposed) Order To Plaintiff's Motion To Lift Stay And For Leave To File Supplemental Complaint)	May 4, 2012	May 4, 2012
56916080	Amended Complaint	May 7, 2012	May 7, 2012
56916080	Plaintiff's Verified Supplemental Complaint 1 Exhibits A-D To Plaintiff's Verified Supplemental Complaint View on PACER 2 Verification Of Mark Perri To Plaintiff's Verified Supplemental Complaint View on PACER 3 Certificate Of Service To Plaintiff's Verified Supplemental Complaint View on PACER	May 7, 2012	May 7, 2012
57006016	Answer and Counterclaim	May 9, 2012	May 9, 2012
57006016	Answer and Verified Counterclaims 1 Exhibit A to Answer and Verified Counterclaims View on PACER 2 Exhibit B, Part 1 to Answer and Verified Counterclaims View on PACER 3 Certificate of Service to Answer and Verified Counterclaims View on PACER	May 9, 2012	May 9, 2012
57006750	Exhibits	May 9, 2012	May 9, 2012
57006750	Exhibit B, Part 2 to Answer and Verified Counterclaims 1 Exhibit C to Answer and Verified Counterclaims View on PACER 2 Exhibit D to Answer and Verified Counterclaims View on PACER 3 Exhibit E to Answer and Verified Counterclaims View on PACER 4 Exhibit F to Answer and Verified Counterclaims View on PACER 5 Certificate of Service to Answer and Verified Counterclaims View on PACER	May 9, 2012	May 9, 2012
57007280	Exhibit G, Part 1 to Answer and Verified Counterclaims 1 Exhibit G, Part 2 to Answer and Verified Counterclaims View on PACER 2 Certificate of Service to Answer and Verified Counteclaims View on PACER	May 9, 2012	May 9, 2012
57007280	Exhibits	May 9, 2012	May 9, 2012
57007647	Exhibit G, Part 3 to Answer and Verified Counterclaims 1 Exhibit G, Part 4 to Answer and Verified Counterclaims View on PACER 2 Verification to Counterclaims (Answer and) View on PACER 3 Certificate of Service to Answer and Verified Counterclaims View on PACER	May 9, 2012	May 9, 2012
57007647	Exhibits	May 9, 2012	May 9, 2012
57282889	Stipulation & (Proposed) Order	May 21, 2012	May 21, 2012
57282889	Scheduling Stipulation and [Proposed] Order	May 21, 2012	May 21, 2012
57336390	Scheduling Order	May 22, 2012	May 22, 2012
57336390	Scheduling Stipulation and Order	May 22, 2012	May 22, 2012
57382561	Answer Of Plaintiff And Counterclaim Defendants To Verified Counterclaims 1 Certificate Of Service To Answer Of Plaintiff And Counterclaim Defendants To Verified Counterclaims View on PACER	May 23, 2012	May 23, 2012
57382561	Answer to Counterclaim	May 23, 2012	May 23, 2012
57421550	Notice	May 24, 2012	May 24, 2012
57421550	Notice and Certificate of Service of (i) City of Wilmington's First Request for Production of Documents Directed to Occupy Delaware and the Individual Counterclaim Defendants, and (ii) City of Wilmington's First Set of Interrogatories Directed to Plaintiff Occupy Delaware and the Individual Counterclaim Defendants	May 24, 2012	May 24, 2012
57454823	Notice Of Service To Plaintiff And Counterdefendants' First Set Of Interrogatories To Defendant And Plaintiff And Counterdefendants' First Request For Production Of Documents To Defendant	May 29, 2012	May 29, 2012
57454823	Notice of Service of Request for Production	May 29, 2012	May 29, 2012
57634457	Amended Stipulation on Scheduling and Discovery and [Proposed] Order	June 5, 2012	June 5, 2012
57634457	Stipulation & (Proposed) Order	June 5, 2012	June 5, 2012
57755068	Granted (Amended Stipulation on Scheduling and Discovery and [Proposed] Order)	June 8, 2012	June 8, 2012
57755068	Order	June 8, 2012	June 8, 2012
57785174	Notice and Certificate of Service of the City of Wilmington's First Requests for Admission	June 11, 2012	June 11, 2012
57785174	Notice of Service	June 11, 2012	June 11, 2012
57911447	Notice of Deposition	June 15, 2012	June 15, 2012
57911447	Notice of Deposition of Plaintiff Mark Perri for June 28, 2012 at 1:30 p.m. with Certificate of Service	June 15, 2012	June 15, 2012
57911448	Notice of Deposition of Plaintiff Rebecca McLaughlin for June 29, 2012 at 1:30 p.m. with Certificate of Service	June 15, 2012	June 15, 2012
57911448	Notice of Deposition	June 15, 2012	June 15, 2012
57911449	Defendant City of Wilmington's Notice of Deposition Pursuant to Court of Chancery Rule 30(b)(6) to Plaintiff Occupy Delaware on June 28, 2012 at 9:30 with Certificate of Service 1 Exhibit A to Defendant City of Wilmington's Notice of Deposition Pursuant to Court of Chancery Rule 30(b)(6) to Plaintiff Occupy Delaware View on PACER	June 15, 2012	June 15, 2012
57911449	Notice of Deposition	June 15, 2012	June 15, 2012
58064209	Plaintiff and Counterclaim Defendants' Notice of Depositions 1 Certificate of Service to Plaintiff and Counterclaim Defendants' Notice of Deposition View on PACER	June 21, 2012	June 21, 2012
58064209	Notice of Deposition	June 21, 2012	June 21, 2012
58115626	Other	June 22, 2012	June 22, 2012
58115626	Expert Disclosure for William T. McKim, Jr. 1 Exhibit A to Expert Disclosure for William T. McKim, Jr. View on PACER 2 Exhibit B, Part 1 to Expert Disclosure for William T. McKim, Jr. View on PACER 3 Exhibit B, Part 2 to Expert Disclosure for William T. McKim, Jr. View on PACER	June 22, 2012	June 22, 2012
58117008	Expert Disclosure for William T. McKim, Jr. (Part 2) 1 Exhibit B, Part 3 to Expert Disclosure of William T. McKim, Jr. View on PACER 2 Exhibit B, Part 4 to Expert Disclosure of William T. McKim, Jr. View on PACER 3 Certificate of Service of Expert Disclosure for William T. McKim, Jr. View on PACER	June 25, 2012	June 25, 2012
58117008	Other	June 25, 2012	June 25, 2012
58117013	Notice and Certificate of Service of Expert Disclosure of William T. McKim, Jr.	June 25, 2012	June 25, 2012
58117013	Notice of Service	June 25, 2012	June 25, 2012
58119624	Expert Disclosure for Jeffery J. Starkey 1 Exhibit A to Expert Disclosure for Jeffery J. Starkey View on PACER 2 Exhibit B, Part 1 to Expert Disclosure for Jeffery J. Starkey View on PACER 3 Exhibit B, Part 2 to Expert Disclosure for Jeffery J. Starkey View on PACER 4 Certificate of Service to Expert Disclosure for Jeffery J. Starkey View on PACER	June 25, 2012	June 25, 2012
58119624	Other	June 25, 2012	June 25, 2012
58120322	Expert Disclosure for Jeffery J. Starkey (Part 2) 1 Exhibit B, Part 3 to Expert Disclosure for Jeffery J. Starkey View on PACER 2 Exhibit B, Part 4 to Expert Disclosure for Jeffery J. Starkey View on PACER 3 Exhibit C to F to Expert Disclosure for Jeffery J. Starkey View on PACER 4 Certificate of Service to Expert Disclosure for Jeffery J. Starkey View on PACER	June 25, 2012	June 25, 2012
58120322	Other	June 25, 2012	June 25, 2012
58120414	Notice and Certificate of Service of Expert Disclosure of Jeffery J. Starkey	June 25, 2012	June 25, 2012
58120414	Notice of Service	June 25, 2012	June 25, 2012
58162870	Plaintiff and Counterclaim Defendants Objection to City's First Requests for Admission 6-26-12 1 Certificate of Service to Plaintiff and Counterclaim Defendants Objection to City's First Requests for Admission 6-26-12 View on PACER	June 26, 2012	June 26, 2012
58162870	Objection	June 26, 2012	June 26, 2012
58196166	Notice of Deposition	June 27, 2012	June 27, 2012
58196166	Notice of Deposition of Jeffery J. Starkey 1 Certificate of Service of Notice of Deposition of Jeffery J. Starkey View on PACER	June 27, 2012	June 27, 2012
58198015	Notice of Deposition	June 27, 2012	June 27, 2012
58198015	Notice of Deposition of William Fasano on July 9, 2012 at 1:30 p.m. 1 Certificate of Service to Notice of Deposition of William Fasano on July 9, 2012 at 1:30 p.m. View on PACER	June 27, 2012	June 27, 2012
58277679	Notice of Deposition	June 29, 2012	June 29, 2012
58277679	Re-Notice of Deposition of William Fasano, with attached Certificate of Service	June 29, 2012	June 29, 2012
58349167	Notice of Deposition of James A. Erisman, Esquire for August 16, 2012 at 10:00 a.m. with Certificate of Service attached	July 3, 2012	July 3, 2012
58349167	Notice of Deposition	July 3, 2012	July 3, 2012
58543584	Stipulated [Proposed] Order	July 12, 2012	July 12, 2012
58543584	Stipulation & (Proposed) Order	July 12, 2012	July 12, 2012
58543589	July 12, 2012 letter to the Honorable Sam Glasscock, III from C. Malcolm Cochran, IV enclosing Stipulated Order	July 12, 2012	July 12, 2012
58543589	Letter	July 12, 2012	July 12, 2012
58623282	Granted (Stipulated [Proposed] Order)	July 16, 2012	July 16, 2012
58623282	Order	July 16, 2012	July 16, 2012